Non Appealable order of Commissioner (Under Service Tax)

[Priyesh Agrawal]

We all know that, were an amount had been collected in the name of Excise Duty/Service Tax, which was collected in excess or was not required to be collected at all, has to be paid to the credit of Central Government. The respective Covering Sections are 11D of Central Excise Act, 1944 & 73A of The Finance Act, 1994. Under both the sections the Central Excise Officers had been provided power to issue Show Cause Notice and there upon determine the amount due after considering the representations made.

Normally, your order would be passed by Adjudicating Authority, who may be Commissioner or an authority below him depending upon the amount involved. In case where order is passed by a authority below Commissioner, the first appeal lies before Commissioner (Appeals) under the provision of Section 35A/85 of the respective acts and in case were Commissioner, being an Adjudicating Authority passes an order the first appeal lies to Appellate Tribunal under Section 35B/86 of the respective acts.

The above words go incorrect, when we relate them to filing of appeal for an order passed by Commissioner under Section 73A of The Finance Act, 1994. As per the writer’s opinion the order of Commissioner under Section 73A is a non-appealable order and Hon’ble CESTAT does not has power to entertain the appeal filed against order of commissioner under said section of the act.

For understanding the same the relevant sections are reproduced below for reference –

Section 35B of The Central Excise Act, 1944

“35B. Appeals to the Appellate Tribunal. - (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order-

(a) a decision or order passed by the Commissioner of Central Excise as an adjudicating authority;

(b) an order passed by the Commissioner (Appeals) under section 35A;

(c) …………………………..

(d) ………………………….”

Section 86 of The Finance Act, 1994

“SECTION 86. Appeals to Appellate Tribunal. -

1. Save as otherwise provided herein, an assessee aggrieved by an order passed by a Principal Commissioner of Central Excise or Commissioner of Central Excise under section 73 or section 83A, or an order passed by a Commissioner of Central Excise (Appeals) under section 85, may appeal to the Appellate Tribunal against such order within three months of the date of receipt of the order.

………………………………………..”

Critical Analysis

Both the sections above provide for appeal to Appellate Authority being CESTAT; however there is a thin line of difference in both the sections. In case under Central Excise all the orders (except otherwise provided by law) of Commissioner of Central Excise are appealable to Tribunal whereas in case of Service Tax only order of Commissioner passed under Section 73 & 83A are appealable to Tribunal. Thus in case of Service Tax order of Commissioner for Demand of duty under section 73 & for levy of Penalty under section 83A would be appealable to Tribunal and order of Commissioner under section 73A shall not be appealable to Tribunal.

Further, Hon’ble Tribunal in case of Nihon Trading Company, filed against the order of Commissioner under Section 84 of The Finance Act, 1994 (Revisionary Orders), after considering the provisions of Section 86 has held that

“It is clear from the above provision that no appeal would lie to this Appellate Tribunal under the above provision against an order passed by a Commissioner of Central Excise under Section 84 of the Act.”

Applying the Rule of Literal Interpretation and considering the Intent of Legislature it is clear that appeal against Orders of Commissioner, under Section 73A of The Finance Act, 1994 does not lie before CESTAT. The only remedy left before aggrieved party is to file a Writ Petition before High Court under Article 226 of The Constitution of India.

Discussions to this article

[KASTURI SETHI]

There is a saving clause under Section 38 A of the Central Excise Act, 1994 as made applicable to Service Tax law. However, Govt.of India, Ministry of Finance will have to insert the words, "Section 73 A" under Section 86(1) of the Finance Act. This is lapse which can be brought to the notice of Govt.for necessary amendment in the coming budget 2016-17.

[Priyesh Agrawal]

Dear Sethi Sir,

First of all thanks for your feedback. Secondly, Section 38A talks of for savings clause for notification, rule,etc. but not for LAW. The Mistake is in Law i.e., The Finance Act, 1994. Thus I dn't think this would help. Further the article I wrote is to highlight the mistake or to say ignorance of Law Makers. They may correct the same and if done my work would fruitful

Thanks once again

[KASTURI SETHI]

I agree with you there is flaw in the law and it should be brought to the notice of CBEC.

[Rakesh Chitkara]

A good job. Please write a simple letter to Chairman, CBEC, North Block, New Delhi-110001. I am sure they would take notice and act. Please also cite relevant case-laws.

[Manoj Agarwal]

Dear Priyesh,

Excellent Work...only possible if a person reads Each and Every word contained in the statutory provision very minutely. I know you will be soon writing your another detailed article for the benefit of all.